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2000 DIGILAW 45 (JK)

State Of J. &K. v. B. L. Choudhary

2000-02-28

A.K.GOEL, T.S.DOABIA

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1. As the respondent writ petitioner (herein after referred to as the writ petitioner) is not likely to suffer any irreparable injury and as he can always be compensated, it is accordingly submitted that he was not entitled to any interim relief. The interim relief came to be granted in a writ petition preferred by him. Even though, the enquiry officer has recorded a finding that as per the date of birth given by the writ petitioner, he stands superannuated w.e.f. 12th Nov. 96, yet the relief has been granted. This relief is to the effect that the writ petitioner shall remain in service at his own risk and cost and shall not be entitled to any salary if he fails in the petition. It is this relief granted by a learned Single Judge of this Court, which is subject matter of challenge in this appeal. 2. The facts in brief are as under. 3. The writ petitioner came to this court earlier also. Two writ petitions were preferred by him. He challenged appointment of the Enquiry Officer, who was supposed to look into the correct date of birth of the petitioner. The writ petitions on the subject came to the disposed of with an observation that the Enquiry Officer can go into the question as to what is the correct date of birth of the petitioner. It was also observed that the finding of the Enquiry Officer shall govern the fate of the intervening period and further continuance of the petitioner in service. It was further directed that till the enquiry is completed and a finding is returned, the status quo as on 4th Aug., 98 i.e. the date on which the two writ petitions came to be disposed of, shall continue to operate. The writ petitioner preferred a Letters Patent Appeal. This appeal can to be dismissed. 4. In pursuance of the directions given by this court, the Enquiry Officer initiated the proceedings. Sh. SS Kapoor. Commissioner/ Secretary to Government. Higher Education Department was appointed as Enquiry Officer. An order to this effect was issued on 22nd May, 98. The writ petitioner was called upon to appear before him. The writ petitioner appeared before the Enquiry Officer on 5.6.98. On this date, an application was submitted by the writ petitioner. He wanted to place on record the following documents. Higher Education Department was appointed as Enquiry Officer. An order to this effect was issued on 22nd May, 98. The writ petitioner was called upon to appear before him. The writ petitioner appeared before the Enquiry Officer on 5.6.98. On this date, an application was submitted by the writ petitioner. He wanted to place on record the following documents. 1) School certificate 2) Birth certificate 3) Document relating to first page of service book. 4) Document relating to at the time of entering into government service. 5) A personal statement relating to date of birth. 6) Any other document relating to it. 5. The writ petitioner was allowed to do the needful. On 16th June, 98 the writ petitioner again sought time and on this date, the proceedings were adjourned to 23rd June. 98. On this date, the Enquiry Officer was not in his office. The further proceedings were taken on 25th June, 98. On this date, the writ petitioner placed on record following documents. 1) Attested copy of the front page of the service book attached with the copy of Medical Report dated 8.11.1969 sent to Government by the Head Office (DTO. Jammu) wherein date of birth is shown as 13.11.1942. 2) A copy of the J&K Public Service Commissions recommendation letter dt. 10.4.1971 sent to the government for filing up two posts of compilers (Gazetted) in the State Gazetteers Unit. 6. For submission of other documents, the writ petitioner again sought adjournment. The proceedings were further adjourned to 23rd July, 98 In the meanwhile, a representation was submitted before the Chief Secretary of the State. Bias was alleged against the enquiry officer. The initial representation made on 29th July, 98 was followed by a reminder. This reminder was given on 5th Oct., 98 As the government did not pass any order, the Enquiry Officer, therefore proceeded to determine the correct date of birth of the writ petitioner. 7. It be seen that the date of birth which the writ petitioner wanted to project was 13th Nov., 1942. The government was however, of the view that the date of birth of the petitioner is 13th Nov, 38. The fact that the date of birth of the writ petitioner was reflected as 13th Nov. 1938 in the Civil list prepared in 1979 and 1982 and it later came to be reflected as 13th Nov.. The government was however, of the view that the date of birth of the petitioner is 13th Nov, 38. The fact that the date of birth of the writ petitioner was reflected as 13th Nov. 1938 in the Civil list prepared in 1979 and 1982 and it later came to be reflected as 13th Nov.. 42 in the civil list prepared in the year 1990, was a matter which drew the attention of the Government. Under what circumstances, the civil list of 1990, the date of birth of the writ petitioner came to the altered was sought to be looked into. The Jammu and Kashmir State Board of School Education was asked to clarify this aspect of the matter. The Board submitted the following report: "After verifying the xerox copy of the certificate sent to this office for verification, the candidate namely Bachan Lal S/o Sh. Sain Dass has passed his Matriculation Examination in the year 1957 under Roll No. 1111 through this Board. The actual date of birth of the candidate is (13.11.1938) (thirteenth of November N.H. & thirty eight) only and not (13.11.1942) as has been wrongly recorded on the certificate by the candidate. The Board Certificate No. is 03277". 8. The writ petitioner was accordingly directed to furnish the original of the matriculation certificate. However, before this could be done, he approached this court. An interim order was passed on 26th Nov., 96. It was directed that the writ petitioner shall not be superannuated at the end of Nov., 1996 but his continuance in service would be subject to the outcome of the enquiry which was being contemplated against him by the respondents. The writ petitioner was also directed to produce his matriculation certificate before his Administrative Secretary within two days of the date of passing of order and the respondent state was directed to complete the enquiry within one month. Later on, as indicated above, the writ petition came to be disposed of permitting the appellant State to determine the correct date of birth of the writ petitioner. It was in these circumstances, the enquiry officer was appointed. The writ petitioner as indicated above, was asked to furnish whatever material is available with him. After examining evidence which had come on the records, the Enquiry Officer expressed an opinion that the correct date of birth of the writ petitioner is 13th Nov., 38. It was in these circumstances, the enquiry officer was appointed. The writ petitioner as indicated above, was asked to furnish whatever material is available with him. After examining evidence which had come on the records, the Enquiry Officer expressed an opinion that the correct date of birth of the writ petitioner is 13th Nov., 38. In coming to this conclusion, the documentary evidence which was taken note of is being serialized as under: i) The writ petitioner had appeared in the matriculation examination in the year 1957. He was a regular student of Government High School, Chamb. In the admission form, which was filled by him, the date of birth was indicated as 13th Nov., 1938. The entries made in this form are in English. This form was meant only for those candidates who wanted to appear in exam. This form was shown to the writ petitioner who was present in the court. He did admit that this form contains his signatures. He showed ignorance about other entries in the form in question. ii) List of candidates who had appeared in the matriculation examination in the year 1957 and which is maintained by the Jammu and Kashmir University, was also taken note of. At S No. 1111 against Roll No. 1111, the entry is with regard to Bachan Lal S/o Sh Sain Dass His date of birth is shown as 13th Nov., 38. iii) The Enquiry Officer also took note of the fact that wherever any alteration was made in the date of birth, this was supported by corresponding authorization. iv) The photostat copies of matriculation certificates of two candidates namely Tahira D/o Sh. Mohd. Abdullah R/o Srinagar and Kartar Nath, S/o Sh. Jamit Rai, R/o Jammu were also examined. The discrepancies which were found vis-a-vis certificate produced by the petitioner and these two candidates were noticed. Paragraph 5(1) of the enquiry report is relevant and is reproduced below: "A perusal of the above certificates in relation to the one produced by Sh. Choudhary initially indicates that nothing is a miss. However, on a closer examination it turns out that while the serial numbers given on the back of the certificates of Ms Tahira and Sh. Kartar Nath are seemingly in print, the same cannot be said of the-S.N. affixed at the back of Sh. Choudharys certificate (copy enclosed as annexure-B) which appears to be of the seal/ stamp type. However, on a closer examination it turns out that while the serial numbers given on the back of the certificates of Ms Tahira and Sh. Kartar Nath are seemingly in print, the same cannot be said of the-S.N. affixed at the back of Sh. Choudharys certificate (copy enclosed as annexure-B) which appears to be of the seal/ stamp type. This becomes more obvious when original certificates are seen. This raised further doubts about the authenticity of the certificate. While the undersigned was proposing to refer the above certificates alongwith the allegedly rubbed off/ mutilated first page of the service book to forensic experts for returning a finding, another document concerning this matter came to hand which conclusively nails the claims of Sh. Choudhary about his DOE", v) The writ petitioner was also asked to furnish the original of the matriculation certificate. This he did nit produce. On the other hand, he stated that he had shown this certificate to the auditor in the office of Accountant General, vi) Another factor which was taken note of by the Enquiry Officer was the application submitted by the writ petitioner seeking leave. In this application filled up by him, the date of birth was given as 13th Nov., 38. 9. Taking note of the admission form noticed above, the list of candidates who had appeared in the examination and the application seeking leave in which the date of birth was shown as 13th Nov., 38. The Enquiry Officer concluded that the correct date of birth of the writ petitioner was 13th Nov., 1938. 10. The Enquiry Officer also took note of the fact that in the communication sent by the Jammu and Kashmir Public Service Commission, the date of birth of the writ petitioner was indicated as 13th Nov., 42. This was sought to be got verified by making a reference to the office of the State Editor, Gazetteers Unit. The State Editor had made a reference to the Accountant General. The Accountant General did ask for the original certificate. The writ petitioner made a noting in this correspondence which is to the effect that my matriculation certificate has been shown to the concerned auditor in the office of Accountant General personally by me. 11. The writ petitioner who was present in person, was asked to produce the original matriculation certificate. The Accountant General did ask for the original certificate. The writ petitioner made a noting in this correspondence which is to the effect that my matriculation certificate has been shown to the concerned auditor in the office of Accountant General personally by me. 11. The writ petitioner who was present in person, was asked to produce the original matriculation certificate. The stand taken by him was that this was left with the State administration and was not returned. 12. We are of the opinion that the Enquiry Officer after examining the admission form, the list of candidates who had appeared in the examination and also the application submitted by the writ petitioner seeking leave, recorded a finding that the date of birth of the writ petitioner is 13th Nov., 38. This finding prima facie is based on good and cogent evidence. The stand of the writ petitioner that his matriculation certificate was left with the government stands negatives from the stand taken by him before the Accountant General office. It was stated by him that the matriculation certificate was shown by him to the Auditor in the office of Accountant General It is too late for him now to suggest that the matriculation certificate was with the State government. Again reliance on the correspondence which was entered into by the Jammu and Kashmir Public Service Commission with the State Government in which the date of birth of the writ petitioner is said to have been 13th Nov., 42. is not supported by any material on the record. As to how this entry came to be made is not clear and it was rightly discarded by the enquiry officer. 13. Where the appointment is secured on the basis of a particular date of birth, then it is not unreasonable to presume that the information given by a candidate is correct. See Union of India Vs. C. Rama Swamy. AIR 1997 SC 2055. In the aforementioned case, following observations were made: ".. But it will not be unreasonable to presume than when a candidate, at the first instance, communicates a particular date of birth, there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging its suitability for a responsible office. But it will not be unreasonable to presume than when a candidate, at the first instance, communicates a particular date of birth, there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging its suitability for a responsible office. Infact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and therefore, more suitable. 14. If an employee seeks correction in his date of birth, he must show that it was on account of negligence on the part of some other person that the date of birth has been wrongly recorded. In the present case, the admission form was filled up by the writ petitioner himself and he did sign the same. As such, the ratio of decision given in Commissioner of Police Bombay vs. Bhagwan Vs. Lahane, AIR 1997 SC 1986, would be attracted to the facts of this case. In the aforesaid case, the extracts from birth register was produced subsequent to recording of date of birth on the basis of School Leaving Certificates. There was refusal to correct the date of birth in the service book on the basis of such extract. It was observed that the extract from the birth register could be ignored. 15. In Union of India vs. Saroj Bala. AIR 1996 SC 1000, the correction in the date of birth was sought after 18 and half years of service. This was disallowed. The delay in the matter of seeking correction in the date of birth is a factor which normally goes against the person who seeks such a correction. See Union of India vs. Ram Suia Sharma (1996), 7 SCC 421. 16. In another case reported as State of M.P. vs. R.P. Sharma (1995) 10 SCC 516, the Middle School. Secondary School and College certificates as well as the gradation list for two years i.e. 1964 and 1965 indicated the date of birth as 13th Nov.. 1936. A loan application was given by the employee. In this also, the date of birth was recorded as 13th Nov.. 36. Later on, an attempt was made to get the date of birth corrected by projecting that it should read as 28th June, 1938. The certificates on which reliance was placed were not found to be genuine. 1936. A loan application was given by the employee. In this also, the date of birth was recorded as 13th Nov.. 36. Later on, an attempt was made to get the date of birth corrected by projecting that it should read as 28th June, 1938. The certificates on which reliance was placed were not found to be genuine. In these circumstances, reliance was placed on the Middle School. Secondary School and College Certificates as well as on the loan application in which the date of birth was recorded as 13th Nov.. 36. 17. If the judicial precedents noticed above are take note of, then it becomes apparent that the Enquiry Officer has relief upon admissible evidence and has given sound and convincing reasons for not placing reliance on the material which was sought to be relied upon by the writ petitioner. 18. It be seen that one of the pleas taken by the writ petitioner is that the enquiry report was not shown to him. It was his case that this was not shown even when he filed the writ petition. The enquiry report has since been made available to the writ petitioner and it was read in its entirety when this appeal was heard. As indicated above, the writ petitioner was asked to indicate as to whether he had filled the admission form in which the date of birth is given as 13th Nov.. 38. He did admit that this contained his signatures. Notwithstanding this, the argument raised was that the writ petitioner is entitled to hearing in terms of the decision of Supreme Court in the case of AIR 1967 SC 1269, State of Orissa Vs. Binapan Devi and Ors. 19. It be seen that the rules of natural justice are to be moulded as per the facts of each case. In State of MP vs. RP Sharma referred to above there was unimpeachable evidence regarding correct date of birth. This evidence was collected in an enquiry in which the civil servant was associated. Under these circumstances, it was observed that there was no need to hold an enquiry. What was observed in para 9 is being reproduced below "The question arises whether a further opportunity needs to be given to the respondent. In our considered view, the principles of natural justice cannot be stretched to the ridiculous edge of opportunity at every stage. Since the Lokayukta. What was observed in para 9 is being reproduced below "The question arises whether a further opportunity needs to be given to the respondent. In our considered view, the principles of natural justice cannot be stretched to the ridiculous edge of opportunity at every stage. Since the Lokayukta. a retired Chief Justice had undertaken full fledged trial where at the respondent had been given ample opportunity to prop up his best trump card and had given his report in the light of the unimpeachable evidence repeat performance by the government would be an empty ritual. The principle of natural justice must be pragmatically allowed fruitful play to meet the given fact situation. When the respondent had the opportunity before the Lokayukta and had adduced all the evidence, no further opportunity needed to be given at the time of correcting the date of birth on the basis of the report submitted by the Lokayukta. It would, therefore, be seen that the Tribunal was grossly in error in directing that he should be given an opportunity afresh before correcting the date of birth". 20. Therefore, to say that merely because the enquiry report was not made available to the petitioner, the principles of natural justice stood violated and this should furnish a ground 1o the writ petitioner to seek a relief from this Court, may not be a correct position in law. 21. It be seen that at the time of hearing of the appeal, the parties agreed that the material which has come on the record be examined for the purposes of decision of this appeal. This has been done, prima facie we have come to the conclusion that the material which has been relied upon by the Enquiry Officer is good and sufficient material for recording a finding that the date of birth of the writ petitioner is 13th Nov., 38. If this be the position, then the appellant State is well justified in contending that no case is made out for grant of interim relief. With regard to the grant of interim relief in such cases the Supreme Court of India in the case of Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Anr. (1995) 4 SCC 172. If this be the position, then the appellant State is well justified in contending that no case is made out for grant of interim relief. With regard to the grant of interim relief in such cases the Supreme Court of India in the case of Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Anr. (1995) 4 SCC 172. had made following observations : "Therefore, there should be no hesitation in holding that ordinarily High Court should not in exercise of its discretionary writ jurisdiction, entertain a writ application/ petition filed by an employee of the Government or its instrumentality towards the fag end of his service, seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement". It was further observed as under: "Prudence on the part of the every High Court should prevent it from granting interim relief in a petition for correction of the date of birth filed under Article 226 of the Constitution by an employee in relation to his employment". Similar opinion has been expressed in (1994) 1 SCC Suppl. 155. 22. In view of the above, we are prima facie of the opinion that the enquiry report is based on good and sufficient material. No case had been made out for grant of interim relief. This appeal is accordingly allowed. It is however, made clear that nothing said in this judgment would be taken as final expression of opinion when the writ petition is taken up for final disposal. Whatever, has been said in this order is for the purpose of grant or non-grant of interim relief only. 23. Therefore, as indicated above, the appeal is allowed. The interim directions contained in the order under appeal are vacated. The State to file objections/ counter at the earliest preferably within a period of six weeks from today and thereafter, the writ petitioner be listed for final disposal. 24. Disposed of accordingly.